T11844
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Willow Court Training and Construction Pty Ltd ("Willow Court") and Sally-Anne Shade
Appeal against a decision handed down by Commissioner Abey arising out of matter T No.11683 of 2004 - appeal rejected - order confirmed REASONS FOR DECISION [1] This is an appeal against a decision of Commissioner Abey in matter T11683 of 2004, where he ordered that the respondent in that application, Willow Court Training and Construction Pty Ltd ("Willow Court"), pay the applicant in that matter, Sally-Anne Shade, "an amount of eleven thousand two hundred dollars ($11,200)". [2] The grounds of appeal are as follows: Ground 1: In breach of Section 20(1) of the Industrial Relations Act, 1984, Commissioner Abey erred by taking into account information contained in a document which was not tendered into evidence by either party, nor marked as an Exhibit. Ground 2: In breach of Section 20(4) of the Industrial Relations Act, 1984, Commissioner Abey erred by taking into account information contained in a document which was not tendered into evidence by either party, nor marked as an Exhibit, without affording the parties the opportunity of being heard in relation to the information contained in the document. Ground 3: Commissioner Abey erred by giving insufficient weight to a relevant matter, being the evidence that there were sufficient funds available to pay creditors. Ground 4: Commissioner Abey erred by failing to give sufficient weight to a relevant matter, being the statutory declaration of Gizem Ertem, which showed that the email dated 25 November, 2003 from Ms Shade to Mrs Cavanough was not received by Mrs Cavanough. Ground 5: Commissioner Abey erred in finding that the Applicant was not guilty of misconduct justifying termination of employment. Ground 6: The amount of compensation awarded is, in all the circumstances of the case, excessive. [3] Grounds 1 and 2: "In breach of Section 20(1) of the Industrial Relations Act, 1984, Commissioner Abey erred by taking into account information contained in a document which was not tendered into evidence by either party, nor marked as an Exhibit. In breach of Section 20(4) of the Industrial Relations Act, 1984, Commissioner Abey erred by taking into account information contained in a document which was not tendered into evidence by either party, nor marked as an Exhibit, without affording the parties the opportunity of being heard in relation to the information contained in the document." [4] We deal with grounds 1 and 2 together. [5] It was submitted by the appellant, Willow Court, that the Commissioner had erred by taking into account information contained in a document not tendered into evidence. The appellant relies on s.20(4) of the Industrial Relations Act, 1984, (the Act) which prescribes: "Where the Commission, in deciding any matter before it, proposes or intends to take into account any matter or information that was not raised before it on the hearing of the matter, the Commission shall, before deciding the matter, notify the parties concerned and afford them the opportunity of being heard in relation to that matter or information." [6] Ms Shade was terminated due to a number of alleged performance related issues. Initially she was not told the reason for her termination however it was submitted that: "... the failure to pay accounts, the failure to request funds in order to pay those accounts, the failure to do all things necessary to obtain a liquor licence and accommodation licence and builders' licence together with Ms Shade's demonstrable incapacity to perform the duties of her position and as a result putting at risk moneys of investors and the development itself, provides you with grounds to find that under those five headings there are grounds for the respondent to find that there was a valid reason to terminate employment." 1 [7] Much of the evidence in the hearing below addressed the allegation that Ms Shade had failed to pay accounts and had failed to request funding in order to pay those accounts. Ms Shade denied the allegation and submitted that she did in fact seek funding but it was not always available as and when sought. [8] In respect to that allegation the appellant claimed that the Commissioner erred by taking into account information in a document found in a ring-bound folder which contained documents the appellant had provided to Ms Shade, and the Commissioner, following the issue of Directions for the exchange of documents. [9] The appellant relied on the following exchange with the Commissioner to demonstrate that the document in question was not marked as an exhibit and as such should not have been taken into account in his determination:
[10] It was submitted by the appellant that each document in the folder was tendered and identified by the relevant witness and then marked as an exhibit by the Commissioner. Not so the document in question which was referred to by the Commissioner in his decision as follows:
[11] The document itself would seem to support the evidence of Ms Shade that she did seek funding to enable her to pay the accounts however the Commissioner has in his decision queried the document and noted that "on its face" the document indicates a shortfall between funds requested and funds received in excess of $300000. [12] This would appear to support the evidence of Ms Shade who testified in the hearing below that "we probably owed some $300000 in creditors". Further, before the Commissioner she said that following a request from Mrs Cavanough for a list of "what's really urgent" she prepared and provided a list of creditors who were pressing for payment. That list revealed an amount of some $120000 and, it was Ms Shade's evidence, only referred to those creditors pressing for payment. It was Ms Shade's evidence that she "regularly requested moneys". 4 [13] In the matter before the Commissioner a further document tendered by Willow Court, dated 12 July, 2003, and about which Ms Shade was cross examined, was a document generated by Ms Shade and provided to Ms Cavanough which indicated accounts payable at that time were approximately $300000. It was Ms Shade's evidence that she sought funding to pay the accounts. [14] Exhibit R10 tendered in the hearing below is a document headed "Payables Reconciliation Summary" which lists the names and amounts owed to each creditor, the total is in excess of $300000. The document, generated by the computer software, was tendered by Willow Court and, it seems, was not challenged. The Commissioner's Exhibit R10 has attached to it the document which the appellant claims was not tendered and should not have been relied on by the Commissioner in his determination. [15] It is clear, and not disputed, that one of the allegations about Ms Shade's performance was that she did not seek funding to allow accounts to be paid, she denied that allegation and it was her evidence that she did in fact regularly seek funds for that purpose but that the money was not always forthcoming as requested. Much of the evidence went to that issue. [16] The disputed document was provided by Willow Court who submitted that "... the author of the document is not clear, the purpose is not clear". 5 [17] The Commissioner referred to the disputed document in his narrative and records caution as to its content and worth. He found that:
[18] The submission of the appellant relies on s.20(4) of the Act. [19] It is our view that the appellant misconstrues the provisions of s.20(4) of the Act. S.20(4) refers to "... any matter or information not raised before it in the hearing ..." it is not specific to any particular document or exhibit but is in general terms as to any "matter or information". We would agree with the submission of the appellant had the Commissioner relied on some information or matter "not raised" before him in the hearing however that is not the case. [20] The matter before him related to the allegation, which it was submitted was a valid reason for termination, that Ms Shade had not requested funding for the payment of accounts. That matter was certainly raised before him in the hearing, and there was a great deal of information about that allegation provided by way of sworn testimony and a number of exhibits. There is nothing in the Commissioner's decision which would suggest that he relied on the content of the disputed document. He said:
[21] It was submitted that s.20(4) requires "... that where the Commission has a document before it that it intends to rely upon - it is a fundamental principle of natural justice that all parties are informed about the matters that form the basis of the decision. I don't think that it is - I think that to read that section any other way is contrary to the intention of the Act". 8 [22] However in this matter the Commissioner did not "take into account any matter or information not raised before" him "in the hearing of the matter". The matter was the allegation about Ms Shade not seeking funding for the payment of accounts and the Commissioner seems to have preferred the sworn evidence of Ms Shade which formed part of the information provided in the hearing. Whilst there is nothing to indicate that the Commissioner relied on the disputed document, other than some cautionary reference to it in his narrative, the disputed document was but one of a number of documents and considerable sworn testimony which addressed the matter of Ms Shade allegedly not seeking funding. [23] We reject appeal grounds 1 and 2. [24] Appeal ground 3: "Commissioner Abey erred by giving insufficient weight to a relevant matter, being the evidence that thee were sufficient funds available to pay creditors." [25] We note the comments of the Commissioner where he said: "As indicated at the beginning of this decision, the witness evidence was in fundamental conflict on almost every key issue. There was however no basis for the Commission to make an adverse finding as to witness credit, such as would enable me to prefer the evidence of one witness to another as a matter of course. In certain instances however, I have drawn conclusions based on the balance of probability." [26] The Commissioner has considered the evidence and submissions put to him and has drawn his conclusions accordingly. There was nothing put to us on appeal that would demonstrate any error and he has exercised his discretion as to what view to make of the contradictory evidence before him. The appellant relied on its submissions presented in support of appeal grounds 1 and 2 in respect to grounds 1 and 2. Accordingly we rely on our findings in respect to grounds 1 and 2. [27] We reject appeal ground 3. [28] Appeal ground 4:
[29] Gizem Ertem provided a statutory declaration stating that a check had been undertaken of Ms Cavanough's computer and file server and claimed that there was no evidence of the email dated 14 November, 2003, having been sent by Ms Shade. [30] Ms Shade challenged the findings in the statutory declaration but was not able to cross examine Gizem Ertem who was not called as a witness. Gizem Ertem stated that he had also "retrieved all emails from Willow Court from 15 October 2003 through to end February, 2004" and seemed to indicate that only five were found from Ms Shade over that period. [31] Ms Shade said that she had been in regular contact with Ms Cavanough during the period of the check and many emails would have been exchanged. It was her evidence that "... Barbara and I regularly - well not Barbara and I regularly, Barbara wasn't very - didn't have much knowledge of emails - but I regularly sent Barbara emails ..." [32] Ms Shade testified that she also communicated with Ms Cavanough by fax, email and post. [33] The evidence of Ms Shade was not seriously challenged. The Commissioner has given weight to the evidence and has expressed the following view in his decision:
[34] We are satisfied that the Commissioner considered the content of the statutory declaration and nothing was put to us on appeal that would support the claim that he erred in doing so. [35] Appeal ground 4 is rejected. [36] Appeal ground 5: "Commissioner Abey erred in finding that the Applicant was not guilty of misconduct justifying termination of employment." [37] It was submitted that the termination of Ms Shade was justified and was based on misconduct. There were a number of allegations of misconduct which the Commissioner summarised under the headings of `terms of engagement' and `performance issues'. [38] The Commissioner found no evidence in support of the allegations of misconduct and said:
[39] The appellant submitted that the misconduct included the failure of Ms Shade to pay the accounts and we have addressed that allegation in our consideration of appeal grounds 1 and 2. It was also claimed that Ms Shade was paying herself an hourly rate of pay not agreed or authorised by Ms Cavanough; that she claimed an allowance for her motor vehicle and utilised a mobile telephone provided by Willow Court for personal calls. All of those allegations were addressed by the Commissioner. [40] It would appear that Ms Shade was employed in a position beyond her capability, whether the position she finally held was in fact the position offered her by Ms Cavanough is not clear, the position may well have developed over time and grown too large for one person. The employment of some assistants for Ms Shade would support that view. Nevertheless the employment process was less than desirable and quite unprofessional. Ms Shade was recommended by another person, Ms Cavanough was aware of her lack of qualifications however nothing was committed to writing and Ms Cavanough testified that it was only at the time of termination that she was aware of the rate Ms Shade was paid which she said was not an agreed figure. Further no challenge was made to the termination payment calculated by Ms Shade. [41] Ms Cavanough also testified that she engaged Ms Shade as a contractor rather than as an employee, again nothing was recorded. There is no record of any issues of performance raised by the appellant likewise no position description exists as to what was expected of Ms Shade. Ms Cavanough indicated that she had some reservations about the fact that Ms Shade had no formal qualifications and said:
[42] The engagement and employment process was, to say the least cavalier, with no records of any employment entitlement or issue maintained by the appellant. There is no indication of any attempt to address concerns about Ms Shade's performance. The Commissioner commented as follows:
[43] There was nothing put to the Full Bench on appeal that was not before the Commissioner and we are of the view that the finding of the Commissioner was open to him in consideration of the evidence and submissions presented. We detect no error. [44] We reject appeal ground 5. [45] Appeal ground 6:
[46] The Commissioner found that it was "difficult to imagine a more profound denial of procedural fairness" and determined that an additional period of eight weeks would likely to have been worked had proper procedure been followed. That period included some time for additional training and assessment. Accordingly he ordered that Ms Shade receive a payment equal to eight weeks pay in settlement of her application. [47] We agree with the Commissioner's finding that there had been a "profound denial of procedural fairness". We are of the view that the finding and the compensation awarded was reasonable and open to him. [48] We reject appeal ground 6. [49] We confirm the decision and order of Commissioner Abey. P L Leary Appearances: Date and Place of Hearing: 1 Decision para 29 |